## Facts

- 7 World Trade Center (7WTC), completed in 1987, was a commercial office building constructed above an electrical substation owned by Consolidated Edison Company of New York, Inc. (Con Ed).
- On September 11, 2001, debris from the collapse of the North Tower struck 7WTC and ignited fires.
- The debris also compromised water mains, leaving firefighters without an adequate water supply to fight the fires in 7WTC.
- Firefighters established a collapse zone and did not attempt sustained fire suppression, allowing the building to burn uncontrolled for roughly seven hours.
- 7WTC collapsed, destroying Con Ed’s substation and causing substantial property loss.
- Con Ed and its insurers (as subrogees) sued the building owner and entities involved in the design, construction, and operation of 7WTC, alleging negligent fireproofing, structural design, and fuel-system-related decisions contributed to the collapse.

## Issues

1. Whether the defendants owed Con Ed a duty of care in the design, construction, and operation of 7WTC in light of the September 11 events.
2. Whether plaintiffs produced sufficient evidence to create a triable issue that any alleged negligence was a cause-in-fact of the collapse and resulting damage, as opposed to the extraordinary September 11 conditions.

## Decision

- The Second Circuit affirmed summary judgment for defendants.
- The court assumed, without deciding, that defendants owed a duty of care and that the record could be read to permit an inference of breach.
- The court held plaintiffs failed to raise a genuine dispute of material fact on cause-in-fact because their proof did not show that, absent the alleged design and construction defects, 7WTC would have remained standing under the conditions of September 11.
- The court concluded that, given the combined forces of debris impact, multiple fires, loss of water supply, and prolonged uncontrolled burning, the building would have collapsed regardless of the alleged negligence.
- A separate writing would have permitted a trial on plaintiffs’ theory that buildings should withstand an unextinguished fire and that proximate cause should be resolved by a factfinder.

## Legal Principles

- Negligence liability requires evidence that the defendant’s conduct was a factual cause of the plaintiff’s injury; speculative expert assertions are insufficient to defeat summary judgment.
- A court may affirm summary judgment on an alternative ground supported by the record, including failure of proof on causation, even if the district court relied primarily on duty.
- In catastrophic-event cases, plaintiffs must provide non-speculative evidence that alleged design or construction defects made a difference to the outcome under the event conditions, not merely that defects existed.

## Conclusion

The Second Circuit affirmed dismissal of Con Ed’s subrogation negligence claims because plaintiffs did not present evidence from which a reasonable jury could find that alleged design or construction shortcomings, rather than the extreme and combined September 11 forces, were a but-for cause of 7WTC’s collapse and the destruction of the substation.


Aegis Ins. Servs., Inc. v. 7 World Trade Co., L.P., 737 F.3d 166 (2d Cir. 2013)